Chicago, Burlington & Quincy Railroad v. Sevcek

Letton, C. The sole question presented in this case is whether or not the railroad company is liable for the killing of six hogs belonging to defendant in error, which were killed at a point Avithin the station grounds at the station of WarsaAV, in Howard county. Warsaw is a flag station on the line of the railroad, there is no toAArn or village at the station, but there is a platform, side track, elevator, office and scales, stock-yards, coal house and corn-cribs. The railroad track runs nearly straight east and west, a side track being on the south side of the main track about 900 feet long. At this point for a distance of about 1,200 feet the right of way is 200 feet Avide, on the north side of the track being 50 feet and on the south side 150 feet from the center line of the track. The elevator, stock-yards, corn-crib and coal house are all situated upon the south side of the track, while the platform is upon the north side. There is also upon these grounds a house which is occupied part of the year by a man Avho attends to buying and shipping grain at the elevator. A public higlrway runs across the right of Avay betAveen the stock-yards and the elevator almost at right angles to the track. The evidence shoAvs that WarsaAV is a time-card station which has the time for the arrival and departure of trains set down; that no ticket office or Avaiting room is there, and no tickets are. sold at the. station, but that tickets are sold from other points to that place. There are usually from 40 to 50 car loads of freight a year, and grain, live stock, emigrant .movables, and machinery, baggage and tranks, and people are loaded and unloaded at the platform, stock is shipped and received at the stock-yards, and coal received and sold at the coal house. Section 1, article I, chapter 72, Compiled Statutes, 1903 (Annotated Statutes, 10020), requires all railroads to erect and maintain fences on the sides of their railroad sufficient to prevent cattle, horses, sheep and hogs from getting on the railroad, except at the crossings of public [795] roads and highways, and within the limits of towns, cities and villages, and requires them at all road crossings to maintain cattle-guards sufficient to prevent cattle, horses, sheep and hogs from getting onto such railroad, and makes the railroad corporation liable for damages to stock killed or injured where the fences and guards are not in sufficiently good repair to accomplish the object for which the same are prescribed. If this statute is to be construed literally, the only exception to the requirement of fencing is in public highways, and within the limits of towns, cities and villages; and, since Warsaw is neither a town, city or village, the defendant in error has no defense. Must the statute, be strictly and literally construed? This statute has heretofore come before this court for construction with reference to the duty of the railroad company to fence near its switch tracks. In Chicago, B. & Q. R. Co. v. Hogan, 27 Neb. 801, where it was stipulated that the corporate limits of a city, with buildings thereon, extended along one side of the various side tracks of a railway, the land on the other side not being platted; that the side tracks were necessary for the business of the company, and that it would be inconvenient and unsafe to the employees of the company if the cattle guard and fence were erected, it was held that the railway company was not required to fence its tracks at that point. Upon a rehearing the former conclusion was reaffirmed, and the action was reversed and dismissed. 30 Neb. 686. In Union P. R. Co. v. Knowlton, 48 Neb. 751, an animal was killed at a point about midway between the. limits of the. city of Lincoln and the village of West Lincoln. On the part of the railroad company it was contended that the point was within the actual limits of the Lincoln yard; that the track was in constant use in the making up of trains, and that a fence thereon would be dangerous to employees. The court say: “It is conclusively shown that the defendant’s depot grounds are situated more than a mile distant from the point of the collision. Nor is there in the record any [796] evidence tending to prove; that the use of the track between Lincoln and West Lincoln was necessary in the making up of trains, or that the facilities afforded by the tracks within the yard limits were insufficient for that purpose. The most that can be claimed by the defendant is that it is convenient for it to use the track in question in making up its trains and that it was occasionally used for that purpose. The legislature could not have intended the provision of the exception above noted to include tracks outside of the limits of cities, towns and villages, remote as is this one from the depot grounds and side tracks and not necessary for use in making up trains.” In Minnesota a similar statute made no exceptions as to fencing within cities or villages, and the court held that there was no reason why the requirements of the act should not apply within cities and villages as well as in the country, and that other provisions of the law with reference to obstructing streets and highways would prevent the inclosure of tin; railroad track at such points. The court further said, however: “There is another exception implied as to places required to be left open by the public necessity or convenience, such as grounds about stations which are used for the entrance or exit of passengers, or the receipt and delivery of freight; but this public convenience is the limit of the exception.” Greeley v. St. P., M. & M. R. Co., 33 Minn. 136, 22 N. W. 179. The statute is an exercise of the police power of the state enacted for the welfare not of the railroad but of the people. The object of statutes of this nature is primarily the benefit of the public, and secondarily for the benefit of private individuals. In its construction,- therefore, courts must give that construction which is most for the public benefit, and must consider in a secondary degree what is the interest of the individual. To enforce the statute accordingly the letter would effectually deprive the public of all the convenience and advantage obtained by the location of a railroad station, grain and coal market, [797] and stock-yard at that point, and would prohibit every railroad corporation from maintaining transportation facilities for the convenience of farming communities away from the limits of towns, cities or villages. It is not the benefit to the railroad that is to be considered so much as the welfare and convenience of the public. Every railroad company in this state is required by statute to furnish sufficient accommodations for the transportation of passengers and freight, and to take, transport and discharge all passengers to and from such stations as the trains stop at, from or to all places and stations upon their road, on the due payment of fare or freight bill. Under this section the railroad company is compelled to transport passengers to Warsaw upon the due payment of fare, and to furnish them proper facilities for access to or egress from their station platform. It is unreasonable to suppose that the law compels a railroad company to furnish facilities to the public, and at the same time it be compelled by another law to fence the public out from such facilities. This would be manifestly a forced construction of the law. The legislature certainly never intended to prevent a railroad company from furnishing such facilities to rural communities in which no town or village exists, where the demand justifies the giving of the same. As between the right of the public to thus be accommodated, and the danger of the loss to the owner of live stock by the straying of his animals upon the track, the benefit t,o the public is of more importance, and there is an implied exception to the strict letter of the statute which is dictated by sound reason. We agree therefore with the contention of the plaintiff in error that a railroad company is not bound to fence its tracks in such a manner as to exclude the public from proper access to its station grounds. The failure to fence is excusable, however, only to an extent sufficient to afford the public and the railroad company necessary facilities for transacting the business reasonably to be expected at this locality. While the railroad company would be ex [798] cused from fencing a sufficient portion of its right of way to allow the public access to the loading and unloading facilities there provided, it Avould not be excused for a failure to fence another or greater space. At the locality in question, however, we see no reason Avhy the railroad company should not have fenced its right of way on the north side to connect Avith the fence on the west side of the highway, as well as to have fenced it to the highway fence on the east side of the road, as it actually did. It is the locality Avhere animals pass onto the right of Avay that determines the liability of the company as between a place Avhere the statute requires it to fence its road and a locality which it is not required to fence. It appears from the plat that both sides of the highway running north from the right of way are fenced, and that the tract' of land from whence the hogs went upon the right of way was not open to the public highAvay.. To fence the right of way at this point would in no manner interfere Avith the access of the public to the transportation facilities afforded by the station. It was private property over which the hogs came, on which the public Avould be trespassers. Under the circumstances presented by this case the principle invoked by the plaintiff in error does not apply. We cannot speculate upon the proposition as to Avhether, even if the fence had been along the north side of the right of way, the hogs would have gotten onto the track by traveling east to the line of the highway. The plat in evidence shows a fence along the highway, but whether it is hog tight or not does not appear. There is no evidence to show that they came upon the right of Avay at the highway, and there is evidence to shoAv that they came upon the right of Avay at a point where the track might have been fenced without inconvenience to the public or the employees of plaintiff in error. We believe it was the duty of the railroad company under the statute to have a fence at this point, and that they are therefore liable for the actual value of the hogs killed. 2. -: -. Principles laid down in the first three paragraphs of the syllabus in former opinion, ante, p. 793, adhered to. 3. -: -. Fourth paragraph of syllabus to former opinion set aside. We recommend that the judgment of the district court be affirmed. Ames and Oldham, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed.